This article is written by Priya Das of 5th Semester of Bikash Bharati Law College, University Of Calcutta, an intern under Legal Vidhiya
ABSTRACT:
In a democratic country where the functions work of government is increasing day by day there it is not possible to control and perform all the work. Indian government has three pillars, legislature is one among those. The works are divided between those organs of government. Legislature has the power to make laws for the country and its people. Sometimes the burden of work overloaded upon legislature at that time in order to reduce this burden the Parliament of India, the primary legislation delegate its power to some power to the executive for making several laws. As the executive has law making power in certain conditions. Those laws should have to be made with legislative authority.
Keywords: Executive, Parliament, agencies, Legislature, laws, rules, regulations.
INTRODUCTION:
To reduce the workload of parliament, it delegates the authority to make laws to several authorities for specific areas. Primary legislation delegates its power to executive to take speedy decisions as compared to legislature. To take time in making decisions makes legislature inadequate. According to Black Law Dictionary, in delegated legislation it empowers another authority to do act in place of the authority by which the power is given.
As several authorities have law making power it must have to efficient effective, technically expert and accountable for its actions. Delegated legislation is also known as subordinate legislation, secondary legislation, quasi legislation, administrative legislation. In order to make it effective it has to include mechanism like due process, judicial review public opinion and also parliamentary scrutiny. There are several types of legislation such as executive legislation, orders in council, subordinate legislation, rulemaking power, by laws etc. Delegated legislation is more connected with local authority which is more accurate about the necessity in case of rulemaking. It makes rules in specific areas such as environmental issues, health, taxation etc.
DEFINITION:
Delegated legislation is those body who makes laws other than the legislation. This bodies have the power only to enact rules, regulations. The Parliament delegates it’s the power to executive. The term delegate means give power to some other authority. The term delegated legislation means the rules regulations made by some authorities other than primary legislation. Primary legislation delegates some authorities to make laws in specific areas. Delegated legislation is more efficient in emergency period. It takes quick decisions without waiting for parliamentary session. As it has power to make laws but it remains in control of primary legislation. The laws made by those authorities are examined by Parliament. It has to be accountable regarding its actions. It also considered as secondary or subordinate legislation as it has the same power to make laws, but there are several limitations. According to Black Law Dictionary, delegated legislation means an act of empowering a person to execute the act on behalf of the person who provides this power or act as an agent. Primary legislation empowers the authority to make laws to some lower authorities who are subordinate to legislature. It is also known as auxiliary legislation which does an act on behalf of primary legislation other than legislature. The Parliament only can delegate its authority. Through this delegation parliament empowers those authorities to make some effective, efficient rules according to the situation. Delegated legislation is other than sovereign legislation which incorporate in specific areas. It is technologically expertise and very effective in emergency situation.
TYPES OF DELEGATED LEGISLATION:
- Executive legislation: The Parliament of India has given power to the executive to some extent to make rules for the citizen. This includes administrative agencies, state government
- Orders in council: Order in council basically made to take fast decision, whenever it required, when can’t wait for the Parliament of India to make decisions. This authority governed by the council of ministers.
- Subordinate legislation: This legislation is subordinate to the Legislature. This includes local laws, rules made for local people. Those rules made by panchayat, local authorities. For example, if a rule made only for a municipality area this can be treated as rule made by subordinate legislation.
- Rule-making power: This power includes an authority to make law for a particular sector or for particular area of people. These authorities have power to make rule-regulations within their limited jurisdiction.
- Emergency Legislation: Article 352, Article 356, Article 360 of Indian Constitution gives power to president to make decisions during emergency period. At that time executive branch has the power to take all the decisions. The orders and ordinance must be passed by the primary legislation.
- By-laws: These laws are created to control a particular industry, specific authority. Those laws regulate these authorities. If these authorities created several laws which are consistent with the law, then those also included in by-laws.
NEED OF DELEGATED LEGISLATION:
Here are several needs of delegated legislation, such as:
- Delegated legislation is needed to make laws for local authority. It is not always possible to make laws for primary legislation for particular area in those cases delegated legislation ensures laws. It is important to give power to make laws for local area for better functioning of government.
- Delegated legislation helps to reduce the work pressure of parliament by making laws for particular area. As Legislature has the power to make laws it is not always possible to make laws for specific areas which are needed. In those cases, delegated legislation makes laws which is authorized by Legislature.
- In case of health, education delegated legislation makes more complex laws, which helps to tackle the situation.
- There are several times when local authority has the knowledge regarding the ground situations as they are more connected than the Primary legislation. Thus, delegated legislation makes more valuable laws which help to control the situation.
- In emergency situation delegated legislation have important role. It takes quick decisions and immediate action without waiting for Parliamentary session, which makes delegated legislation more flexible at the time of crisis.
- Delegated legislation is more expertise in case of technical intricacies. So, government agencies are needed to resolve those problems.
CONSTITUTIONAL STATUS:
There is no specific provision in mentioned in Indian Constitution. But Rajya Sabha has power to make a branch of All India Service by two-third majority vote according to Article 312. All India Service has power to make laws which are other than legislature. This Article ensures that primary legislation has power to delegate its power to make laws to this Service commission. Delegated legislation must have to accountable for its actions and it must not inconsistent with law.
1.D. S. Garewal vs The State of Punjab and Another on 11 December, 1958[1]: This case deals with the power of delegated legislation. As Article 312 of Constitution of India gives the Rajya Sabha to make All India Service. The appeal raises the question of All India Service Act. He had given a post of superintendent officer. According to the case he was removed from the post by central government. As central government instituted enquiry against him, it was held that there was nothing mentioned which shows that delegation of power was removed as mentioned in Article 312.
Panama Refining Co. v. Ryan[2]: In 1933, the president ordered to prohibit the transportation of petroleum in interstate and foreign commerce in exceeding limit mentioned by state. And also stated that any infringement will get punished. The Supreme Court of United States held it as against the Constitution. In this case it was held that the president was vested with legislative powers without any particular guidelines. Congress delegated power to the executive depending upon two factors. Supreme Court of United States declared that delegation of power of president was considered unconstitutional and invalid.
CONSTITUTIONAL LIMITS:
Various landmark decisions of the Supreme Court have enshrined the ‘constitutional limits’ of delegated legislation along with the tests for determining whether there is an ‘excessive delegation’ of legislative power. The SC has specified the following circumstances where a delegated legislation would be invalid: the delegated legislation violates any of the fundamental rights or violates any other provision of the Indian Constitution. The Rules / Regulations are ultra vires the provisions of the parent Act and fail to conform to the substantive provisions of the statute. The Executive did not have the legislative competence to frame the said rule or regulation. The delegated legislation exceeds the limits of the authority conferred by the enabling statute. A delegated legislation can also be struck down on the ground of manifest arbitrariness, and unreasonableness. The delegated legislation cannot provide for a retrospective operation unless expressly authorised by the parent statute. A delegated legislation cannot address substantive policy aspects. The SC has held that the Legislature cannot delegate its ‘essential legislative functions’ to the executive branch. Further, the determination of the ‘legislative policy’ and its formulation as a rule of conduct is an essential legislative function, which cannot be delegated to the executive.[3] Primary legislation must have to provide guidelines, policies which helps to operate within its authority and cannot conferred any unchecked power to executive. Secondary legislation must have to be within manner without creating complexity.
REASONS FOR GROWTH OF DELEGATED LEGISLATION:
- Take Speedy decisions: Delegated legislation takes fast decisions. Whenever there are speedy remedies are required. Parliament has a lot of work pressure through which it wouldn’t be able to take speedy decisions, thus delegated legislation deal with those problems.
- Reduce work of Parliament: Legislature has the power to make laws. Primary legislation delegates its power to make laws in order to reduce the workload of Parliament. Delegated legislation deals with small matters within the control of primary legislation.
- More efficient: In Parliament the law-making procedure is rigid. Whereas delegated legislation takes more efficient and speedy decisions. It is more expertise and effectual in case of giving opinion. Delegated legislation is more expertise in case of technical aspects and formulate laws more efficiently.
- Direct connection with local authority: As Parliament gives power the executive to make laws in particular areas as executive is more connected with the with the citizens and have more knowledge about local problems. So, executive makes more effective laws that helps to remove those problems.
ADVANTAGES OF DELEGATED LEGISLATION:
- Flexibility: Delegated legislation takes quick decisions without waiting for parliamentary session in emergency period. In modern government in several times their need for quick decisions making, which marks it as flexible.
- Efficiency: Delegated legislation is more efficient in its work. It takes various parliamentary work which delegated to them.
- Technological advancement: In modern world technological expertise needed to tackle new challenge and to cope with outer world. Technological expertise of relevant authorities makes the rules more effective and according to the necessity.
- Effective for emergency situation: Delegated legislation saves time in emergency situation by taking emergency actions as compared to the Parliament.
- Specialized knowledge: The relevant authorities have specialized knowledge in several areas. It makes rules according to the necessity in cases of health, education, environmental issues.
- Reduce workload: Primary legislation delegates its power to make laws to some relevant authorities. It reduces the burden of work of parliament by taking decisions in specific areas. Which is necessary for administering a modern society.
- Adoption of regulations: Delegated legislation allows for adoption of regulations as the rules made by those authorities are effective and efficient, based on expertise knowledge.
DISADVANTAGES OF DELEGATED LEGISLATION:
Delegated legislation is considered as some administrative authorities which helps to reduce the burden of work and has power to make laws by those authorities other than legislature. Delegated legislation has an importance in democracy. But it also several disadvantages in case of law making. In delegated legislation is sometimes limited to public participation. Delegated legislation makes limited opportunity for public opinion or scrutiny. The laws created by Parliament will hold debates to clear the problem, delegated legislation is not always aware to create such types of debates. In case of implanting an act, I might go beyond its particular purpose. Delegated legislation sometimes difficult to understand to the public. Other disadvantages of delegated legislation as it sometimes incapable of auditing laws. The language of delegated legislation in making laws leads to arbitrariness, ambiguity and difficult to understand. Delegated legislation takes quick decisions which sometimes leads to ineffective because of without carried the matter to the court for attention as it requires more time. That’s why those authorities have power to make laws for limited areas. There might be a risk created in case of scrutiny as there is limited time to understand the rules. As the administrative agencies created those rules might lead to difficulties especially in several cases. Delegated legislation has various disadvantages as compared to the Primary legislation. It must have to be consistent with the law and must make rules without creating arbitrariness.
To address these disadvantages, it is important to ensure adequate safeguards and controls on delegated legislation, such as proper parliamentary scrutiny, transparency, public consultation, and mechanisms for judicial review. Striking a balance between the need for efficient law-making and democratic accountability is crucial in mitigating the disadvantages associated with delegated legislation.[4]
CONCLUSION:
Despite there is several disadvantages exist but these body or people who have the power to make rule, regulations, laws other than the legislation are required for smooth functioning of government. As legislation has the power to make laws it is not always possible to look after every situation. These authorities help to reduce workload and as they are connected with the local people, there is a possibility of acknowledgement of people’s need. In emergency period delegated legislation take decisions immediately which is needed without concerning the ministers. But those laws made are must be passed by the both houses of Parliament. Delegated legislation provides flexibility and efficient in its work.
[1] 1.D. S. Garewal vs The State of Punjab and Another 1959 AIR 512, 1959 SCR Supl. (1) 792
[2] Panama Refining Co. v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446, 1 Ohio Op. 389 (U.S. Jan. 7, 1935)
[3] The Rise and Rise of Delegated Legislation – Do We Need More Safeguards?
26 Jan 2022, 11:25 AM IST Available at https://www.bqprime.com/opinion/the-rise-and-rise-of-delegated-legislation-do-we-need-more-safeguards last visited on 14th October, 2023
[4]Discuss the disadvantages of delegated legislation, May 30, 2023 available at https://uollb.com/blog/alevel-law/discuss-the-disadvantages-of-delegated-legislation last visited on 15th October, 2023
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